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Income Tax Appellate Tribunal, PUNE BENCH “A”, PUNE
आदेश / ORDER
PER SUSHMA CHOWLA, JM:
The appeal filed by Revenue is against order of CIT(A)-6, Pune, dated 14.09.2016 relating to assessment year 2011-12 against order passed under section 143(3) of the Income-tax Act, 1961 (in short ‘the Act’).
The Revenue has raised the following grounds of appeal:- 1. Whether on the facts and in the circumstances of the case, the Ld.CIT(A) has erred in accepting that the road acquisition area is to be
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considered as part of area of the plot for calculation of minimum 1 acre of area for claiming deduction u/s. 80IB(10) of the I.T. Act, 1961. 2. Whether on the facts and circumstances of the case, the CIT(A) has erred by not considering the fact that the area under road acquisition was prior to the purchase of land by Yash Promoters & Developers as it clear from demarcation plan approved by PCMC in 2004. 3. Whether on the facts and circumstances of the case, the CIT(A) has erred in accepting assessee's plea that area transferred to PCMC for public amenity should be considered as part of the project. 4. Whether on the facts and circumstances of the case and in law the CIT(A) was justified in not considering the fact that the FSI for land acquired by PCMC for road was used in the project even when FSI/FAR is a tradable commodity in the form of TDRs and hence condition of area prescribed in clause (b) can be fulfilled based on the land against which FSI/FAR are issued. 5. Whether on the facts and circumstances of the case, the CIT(A) has erred while interpreting the CBDT circular No.5/2005 dated 15.07.2005 to conclude that the area of road to be the area eligible u/s.80IB.
The learned Authorized Representative for the assessee pointed out that the issue raised in the present appeal stands covered by the order of Tribunal in assessee’s own case relating to assessment year 2009-10.
The learned Departmental Representative for the Revenue fairly admitted that the Tribunal has decided the aforesaid issue of claim of deduction under section 80IB(10) of the Act.
The Revenue has raised several grounds of appeal but the issue which has been raised is against the claim of deduction under section 80IB(10) of the Act on the ground that plot area on which housing project is built is less than one acre, which is basic requirement for claim of deduction under section 80IB(10) of the Act.
We have heard the rival contentions and perused the record. Briefly, in the facts of the case, plea of assessee was that it had plot area of 4074
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sq.mtrs., out of which road acquisition area was reserved of 513.80 sq.mtrs. and on the remaining area of 3560.20 sq.mtrs. the housing project was built. The assessee for the first time made the aforesaid claim in assessment year 2008-09 and the same was denied by the Assessing Officer, but was allowed by CIT(A). The Tribunal dismissing the appeal of Revenue in ITA No.498/PN/2012 relating to assessment year 2008-09, vide order dated 17.04.2013 noted the factual aspect that where the assessee had purchased land admeasuring 4074 sq.mtrs. vide registered Development Agreement dated 31.08.2004 and where also the sanctioned building plan mentioned the plot area of 4074 sq.mtrs., out of which deduction of road acquisition by PMC was 513.80 sq.mtrs., fulfills the basic condition of section 80IB(10) of the Act of developing the housing project on minimum area of one acre. It was held that road acquisition area which was left out was part of housing project. The said proposition has also been applied by the Tribunal in assessee’s own case in assessment year 2009-10 in ITA No.2011/PN/2012, order dated 22.10.2013. The case of assessee is thus, squarely covered by earlier orders of Tribunal. Accordingly, we find no merit in the grounds of appeal raised by Revenue and the same are dismissed.
In the result, the appeal of Revenue is dismissed.
Order pronounced on this 11th day of February, 2019.
Sd/- Sd/- (D.KARUNAKARA RAO) (SUSHMA CHOWLA) ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER ऩुणे / Pune; ददनाांक Dated : 11th February, 2019. GCVSR
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आदेश की प्रयिलऱपप अग्रेपषि/Copy of the Order is forwarded to : 1. अऩीऱाथी / The Appellant; 2. प्रत्यथी / The Respondent; 3. आयकर आयुक्त(अऩीऱ) / The CIT(A)-6, Pune; 4. The Pr.CIT, Pune-5, Pune; ववभागीय प्रतततनधध, आयकर अऩीऱीय अधधकरण, ऩुणे “ए” / DR 5. ‘A’, ITAT, Pune; 6. गार्ड पाईऱ / Guard file. आदेशािुसार/ BY ORDER, सत्यावऩत प्रतत //True Copy// वररष्ठ तनजी सधिव / Sr. Private Secretary आयकर अऩीऱीय अधधकरण ,ऩुणे / ITAT, Pune